Surveillance Devices Bill 2004

Bills Digest No. 147 2003-04

Surveillance Devices Bill 2004

WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.

Passage History

To establish a statutory regime covering the use of surveillance
devices for the investigation of Commonwealth offences and State
offences with a federal aspect .(1) The Bill also
regulates the use of information obtained from surveillance devices
and enables surveillance devices to be used in relation to child
recovery orders issued under the Family Law Act 1975.

allow the Commonwealth to consolidate and
modernise its now somewhat outdated surveillance device laws
(2)

Commonwealth laws governing the use of surveillance devices for
law enforcement purposes are currently found in the Australian
Federal Police Act 1979 and the Customs Act 1901.
These laws deal only with listening devices whereas as the Second
Reading Speech for the Bill points out:

A surveillance device can be anything from an
ordinary set of binoculars, a tiny microphone or camera hidden in a
suspect s vehicle to a piece of software to capture the input of
information to a computer.(3)

The origins of the Bill lie in the Leaders Summit on Terrorism
and Multi-Jurisdictional Crime held in April 2002. The Leaders
Summit agreed to introduce model laws for all jurisdictions and
mutual recognition for a national set of powers for cross-border
investigations covering controlled operations, assumed identities,
electronic surveillance devices and witness anonymity.
(4) A Joint Working Group (JWG) was established by the
Standing Committee of Attorneys-General and the Australasian Police
Ministers Council to prepare model legislation. The JWG produced a
Discussion Paper and a Report the latter including model
legislation.(5)

The Second Reading Speech says that the Bill implements the
electronic surveillance model Bill, tailoring it to the needs of
the Commonwealth. (6) As this suggests, there are some
differences between the model Bill and the Bill before the
Parliament.

The Bill does not impose a general prohibition, with exceptions,
on the use of surveillance devices in contrast to the approach
taken in the Telecommunications (Interception) Act 1979
(the TI Act). Rather, it regulates the use of surveillance devices
by law enforcement agencies and the use that can be made of
information collected as a result. Nor does it cover the use of
surveillance devices by Australia s security and intelligence
agencies. ASIO s power to obtain search warrants, computer access
warrants, listening device warrants, and tracking device warrants
is set out in the Australian Security Intelligence Organisation
Act 1979. The intelligence gathering functions of the
Australian Security Intelligence Service (ASIS) and the Defence
Signals Directorate (DSD) are found in the Intelligence
Services Act 2001.

Both the Australian Federal Police Act and the Customs Act
define a listening device as:

Any instrument, device or equipment capable of
being used, whether alone or in conjunction with any other
instrument, device or equipment, to record or listen to spoken
words.(7)

The Customs Act prohibits the use of listening devices, subject
to certain exceptions. One exception is where a listening device is
used under the authority of a warrant. The Customs Act enables the
Australian Federal Police (AFP) and the Australian Crime Commission
(ACC) to obtain listening device warrants from a judge or nominated
member of the Administrative Appeals Tribunal (AAT) in order to
investigate narcotics offences.

The AFP Act empowers the AFP to obtain listening device warrants
in relation to persons, premises and items in order to investigate
offences categorised as either class 1 or class 2 general offences.
These warrants may also authorise entry onto premises. Class 1
general offences include murder, kidnapping and ancillary offences.
Class 2 general offences includes certain corruption offences and
perverting the course of justice offences, and offences punishable
by at least 7 years in prison that involve loss of life, serious
personal injury or property damage or narcotics trafficking.

Listening device warrants are issued by eligible federal Judges
and certain AAT members who consider sworn information. Where such
a warrant would authorise entry onto premises, additional factors
need to be considered by the Judge or AAT member. For instance, in
relation to class 2 general offences, the likely interference with
individual privacy and the gravity of the conduct constituting the
offence must be taken into account.

A listening device warrant issued under the Customs or AFP Acts
can be in force for up to six months and further warrants can be
issued.

The Commonwealth does not have any general constitutional power
to legislate with respect to listening or surveillance
devices.(8) However, its power to legislate about
telecommunications interception is not so constrained. Using its
power in section 51(v) of the Constitution, the Parliament has
enacted national legislation dealing with telecommunications
interception the TI Act.

The TI Act makes the interception of communications passing over
a telecommunications system unlawful, subject to exceptions. One of
these exceptions is interception under a law enforcement warrant.
The Act enables law enforcement agencies such as the AFP, ACC and
State/Territory police forces acting under a warrant to lawfully
intercept such communications. There are two types of interception
warrant that can be issued for law enforcement purposes
telecommunications service warrants and named persons warrants.
These warrants can also authorise entry onto premises.

For law enforcement purposes, a warrant must be obtained from an
eligible Judge or nominated AAT member . Interception ( TI )
warrants can only be issued in relation to what are called class 1
and class 2 offences. Class 1 offences include murder, kidnapping,
terrorism offences and narcotics offences. Class 2 offences include
offences which are, in general, punishable by at least 7 years
imprisonment where the offender s conduct involves serious personal
injury, drug trafficking, serious fraud, bribery or corruption.
However, the 7 year threshold does not apply in all cases. For
instance, recent changes inserted by the Telecommunications
(Interception) Amendment Act 2004 mean that class 2 offences
include State and Territory cybercrime offences, some of which are
punishable by between 1 and 5 years imprisonment.

An application for an interception warrant must be accompanied
by an affidavit containing prescribed information. The TI Act also
sets out the matters that the eligible Judge or nominated AAT
member must consider when making a decision about whether to issue
an interception warrant. These include the availability of
alternative methods of investigating the offence and, in the case
of class 2 offences, the gravity of the conduct under investigation
and the degree that privacy will be interfered with. If the
application is for a warrant authorising entry onto premises, the
Judge or AAT member must also be satisfied that it would be
impracticable or inappropriate to intercept communications by less
intrusive means.

TI warrants can be in force for up to 90 days and can be
renewed.

The TI Act contains a variety of record keeping requirements and
accountability measures. For instance, it empowers the Ombudsman to
inspect records that the AFP and ACC are required to keep about
interceptions and the use of intercepted information. The Ombudsman
must report to the Minister about these inspections. Reports by law
enforcement agencies must also be made to the Minister and there
are annual reporting to Parliament requirements.

Given that Commonwealth surveillance device laws deal only with
listening devices, what happens if a Commonwealth law enforcement
officer wishes to use a surveillance device that is not a listening
device? As the JWG Discussion Paper explains:

if there is no relevant Commonwealth legislation
[such as the Telecommunications Interception Act 1970, the AFP Act
or the Customs Act], the AFP must abide by any relevant State or
Territory law and the common law when using surveillance devices.
However, unlike the local police force, the AFP is not able to
utilise State or Territory warrant regimes. For example, if the AFP
wanted to use an optical surveillance device to investigate a
Commonwealth offence, the use of the device would either be
permitted or prohibited by the relevant local law or otherwise
subject to the common law, because there is no Commonwealth
legislation regulating the use of such devices.(9)

A summary of State and Territory surveillance device laws is
found in Appendix B of the JWG Discussion Paper on Cross-Border
Investigative Powers for Law Enforcement.(10)

Other investigative tools are found in the Crimes Act, which
enables law enforcement officers to conduct controlled operations
and use assumed identities. It also enables them to obtain search
warrants. Ordinary search warrants enable premises to be searched
for evidential material.

In 2001, the Crimes Act was amended by the Cybercrime Act
2001 to enable the police to operate electronic equipment at
the warrant premises to access data (including data not held at the
premises) (11) and to copy any data that might be
evidential material to disks or tapes. These powers are wider than
the powers granted under an ordinary search warrant because they
allow material to be seized which is unrelated to the investigation
at hand.(12)

Search warrants can be obtained from a magistrate or justice of
the peace who considers a sworn affidavit. A search warrant can be
in force for up to 7 days.

It is also notable that the Bill establishes a statutory scheme
which enables surveillance devices to be used when a child recovery
order has been made under the Family Law Act. Recovery orders can
deal with a range of matters such as requiring a child to be
returned to the child s parent or a person with a residence or
contact order.

a data surveillance device, a listening device, an optical
surveillance device or a tracking device

a device that combines two or more of those devices (ie a
composite device); or

a device prescribed by regulation.

Definitions are also provided for the different types of
surveillance device:

a data surveillance device is a device or program that can
record or monitor the input or output of information to or from a
computer. It does not include an optical surveillance device

a listening device is a device that can be used to listen to or
record a conversation or words. Devices (like hearing aids) used by
those with hearing difficulties are excluded from the
definition

an optical surveillance device is a device capable of visually
recording or observing an activity. The definition encompasses
equipment that is used only for observational purposes (like
binoculars) as well as recording equipment (like cameras and video
recorders). It does not include devices (like spectacles or contact
lenses) that are used by the visually impaired; and

a tracking device is an electronic device capable of detecting
or monitoring a person or object. It emits a radio signal that
allows the movement of vehicles or objects to be
monitored.(13)

Commonwealth, State or Territory police, Australian Crime
Commission staff and secondees working for these organisations can
apply for surveillance device warrants (clauses 6 and
14).

However, unless State and Territory police are investigating a
Commonwealth offence or acting in relation to a child recovery
order they must act under State or Territory laws governing
surveillance device warrants [subclause
14(2)].(14) Similar provisions are inserted in
relation to certain emergency authorisations [subclause
28(2)] and the use of certain surveillance devices without
a warrant [subclauses 37(2), 38(2) and 39(2)].

An application can be made where a law enforcement officer
suspects on reasonable grounds that a relevant offence has been or
may be committed and that an investigation is being, will be
or is likely to be conducted and that the use of a
surveillance device is necessary to obtain evidence
[subclause 14(1)].

A relevant offence includes Commonwealth offences punishable by
at least three years imprisonment, State offences that have a
federal aspect punishable by at least three years imprisonment, and
offences prescribed by regulation (clause 6).
Relevant offences also include certain offences under the
Financial Transactions Reports Act 1988 and the
Fisheries Management Act 1991.

An application can be also made where a recovery order is in
force for a child and the law enforcement officer suspects
on reasonable grounds that the use of a surveillance device may
assist in the location and safe recovery of that child
[subclause 14(3)].

Either an eligible federal Judge or certain nominated AAT
members can issue warrants. For constitutional reasons, a Judge
must first consent to being declared an eligible Judge and the
power to issue warrants is conferred on the Judge in their personal
capacity (clauses 11-13).

AAT members who can issue warrants are Deputy Presidents,
full-time senior members, part-time senior members and ordinary
members. Part-time senior members and ordinary members must be
lawyers of at least five years standing.

the kind of surveillance devices that the applicant wants to use
[subclause 14(5)].

In general, the application must be accompanied by an affidavit
setting out the grounds on which the warrant is sought
[paragraph 14(5)(b)]. However, an unsworn
application may be made if immediate use of the device is required
and it is impracticable for the affidavit to be prepared or
sworn before the application is made. In such a case an affidavit
must be provided within 72 hours after the warrant application is
made [subclauses15(6) &
(7)]. It should be noted that clause 20
gives the Judge or AAT member the power to revoke a warrant. This
power would include the power to revoke a warrant issued after an
unsworn application is made.

There is also provision for remote applications ie applications
made by telephone, fax, email or any other means of communication
(clause 15).

Subclause 16(1)
provides that an eligible Judge or nominated AAT member may issue a
surveillance device warrant if satisfied:

in the case of a 'relevant offence' warrant application that
there are reasonable grounds for the suspicion on which the
application is based

in the case of a 'recovery order' warrant application that a
recovery order is in force and that there are reasonable grounds
for the suspicion on which the application is based

in the case of an unsworn application that it would have been
impracticable for the affidavit to be sworn before the application
was made; and

in the case of a remote application that it would have been
impracticable for the application to be made in person.

In deciding whether to issue the
warrant, the eligible Judge or nominated AAT member must take
account of a number of factors including:

in the case of a 'relevant offence' warrant the nature and
gravity of the alleged offence

in the case of a 'recovery order' warrant the circumstances that
resulted in the recovery order being made

privacy issues

alternative means of obtaining the evidence or information. The
JWG model Bill also required the issuing officer to have regard to
the extent to which such alternative means might assist or
prejudice the investigation. In other words, the question of
alternative means would be put in some sort of context. The Bill
before the Parliament does not follow the model Bill in this
regard

the likely evidentiary or intelligence value of the evidence or
information sought; and

previous surveillance device warrants sought or issued that were
connected with the same alleged offence or recovery order
[subclause 16(2)].

However, unlike the regime set out in the TI Act, there is no
requirement for the Judge or AAT member to take account of how any
information obtained from previous warrants was used. Nor does
information need to be provided to the Judge or AAT member about
previous emergency authorisations or about the use of surveillance
devices under proposed Part 4 (which enables some
devices to be used without a warrant or authorisation).

Among the matters that must be stated in the warrant are the
name and signature of the person issuing the warrant; the applicant
s name; the alleged offence that the warrant relates to (or the
child recovery order); the date of the warrant; the surveillance
devices and premises, objects or people it covers; its duration;
the name of the executing officer and any conditions that the
warrant is subject to [subclause 17(1)].

the connection of the device or enhancement equipment to any
object or system that may be used to transmit information

forcible entry onto premises including adjoining premises
so that the device can be installed, used or maintained

the removal of objects or vehicles from premises in order to
install etc the surveillance device or enhancement equipment and
the return of those objects or vehicles

breaking open things so that the surveillance device or
enhancement equipment can be installed etc; and

the provision of expert assistance to the law enforcement
officer named in the warrant so that the surveillance device or
enhancement equipment can be installed etc [subclauses
18(2) & (3)].

Other matters that the surveillance
device warrant may authorise include:

doing anything reasonably necessary to conceal the fact that a
device or enhancement equipment has been installed etc
[subclause 18(4)]; and

interfering with the property of a person who is not the
subject of the investigation but only if the eligible Judge or AAT
member issuing the warrant is satisfied that this is necessary to
give effect to the warrant [subclause 18(5)].

A surveillance device warrant cannot
authorise the doing of anything for which a telecommunications
interception warrant would be required [subclause
18(7)].

Clause 17 provides that the maximum duration of
a warrant is 90 days (subject to extensions that can be granted
under clause 19).

Clause 19 enables
an application to be made for the extension of a surveillance
device warrant for up to 90 days. Applications to vary the terms of
the original warrant can also be made. The same matters need to be
made out and the Judge or AAT member needs to be satisfied of the
same things as when the original warrant application was made.

There is no limit to the number of
extension and variation applications that can be made. Each
extension may be for up to 90 days.

on the initiative of an eligible Judge or nominated AAT member;
or

by the chief officer of the relevant law enforcement agency.
The chief officer must revoke the warrant if satisfied that the use
of a surveillance device is no longer necessary (clause
20).

If a warrant is revoked by a Judge
or AAT member, a written copy of the revocation must be given to
the chief officer of the relevant law enforcement agency. A law
enforcement officer who is executing a warrant that is revoked by
an eligible Judge or nominated AAT member will not be civilly or
criminally liable for anything done before he or she is made aware
of the revocation [subclause 20(5)].

Clause 21 provides
that if the chief officer of a law enforcement agency is satisfied
that a surveillance device warrant is no longer necessary for the
purposes of criminal investigation or the location and recovery of
a child, then in addition to revoking the warrant under
clause 20, he or she must take action so that the
use of surveillance device is discontinued.

If the chief officer is notified by
an eligible Judge or AAT member that the warrant has been revoked,
the chief officer must take action so that use of the surveillance
device is discontinued as soon as practicable .

The Bill also requires the law
enforcement officer executing the warrant to advise the chief
officer of his or her agency immediately if he or she believes the
use of a surveillance device is no longer necessary
[subclause 21(5)].

In addition to surveillance device
warrants, the Bill also creates a type of warrant called a
retrieval warrant. The Explanatory Memorandum explains:

Where a SD has expired before an LEO has been able
to remove the device that was lawfully installed, clause 22 allows
the LEO to apply to an eligible Judge or nominated AAT member for a
warrant to retrieve the SD, however such an application is not
mandatory. This means, for example, that where retrieving the SD
presents a disproportional cost to the LEA or some danger to the
retrieval team, the SD can remain in place but cannot be
used.(16)

A law enforcement officer can apply
for a retrieval warrant if the officer suspects on reasonable
grounds that a lawfully installed device is still on the premises
[subclause 22(1)].

The application must be made to an
eligible Judge or nominated AAT member [subclause
22(2)]. It must, in general, be supported by an affidavit
setting out the grounds on which the warrant is sought. However,
like a surveillance device warrant, a retrieval warrant may be
applied for remotely or in the absence of a sworn affidavit
[subclause 22(4) and clause 23]. A sworn affidavit
must be provided within 72 hours if it does not accompany the
retrieval warrant application [subclause
22(5)].

An eligible Judge or nominated AAT
member may issue a retrieval warrant if satisfied that there are
reasonable grounds for the suspicion founding the application. He
or she must also take account of privacy issues and the public
interest in retrieving the device (clause 24).
Additionally, if the application is not accompanied by an affidavit
or is made remotely, the Judge or AAT member must consider whether
it would have been practical for the law enforcement officer to
comply with such conditions.

A retrieval warrant must contain the
name and signature of the person issuing the warrant, the name of
the applicant, the date of issue, the kind of surveillance device
to be retrieved and its location, the duration of the warrant (not
more than 90 days), the name of the executing officer and any
conditions that attach to the warrant (clause
25).

forcible entry onto premises and adjoining premises in order to
retrieve the device and the equipment

breaking open anything to retrieve the device or equipment

the temporary removal of a object or vehicle where the device or
equipment is installed and the return of the object or vehicle;
and

the provision of expert assistance to the law enforcement
officer involved [subclause 26(1)].

If a tracking device is the subject
of a retrieval order then the device and any enhancement equipment
can be activated for location and retrieval purposes, but only for
those purposes [subclause 26(2)].

A retrieval warrant may authorise
the doing of anything reasonably necessary to conceal the fact a
device or equipment has been retrieved. Such an authorisation
cannot extend to the use of the surveillance device for any purpose
[subclause 26(3)].

Like a surveillance device warrant,
a retrieval warrant can be revoked on the initiative of an eligible
Judge or nominated AAT member or by the chief officer of the
relevant law enforcement agency [subclauses
27(1)-(4)].

As with surveillance device
warrants, if the executing officer believes that the retrieval
warrant is no longer needed, he or she must immediately inform the
chief officer of the law enforcement agency [subclause
27(5)].

In certain cases, a law enforcement
officer can be authorised by a senior law enforcement officer to
use a surveillance device without first obtaining a warrant. In
general, authorising officers in the police forces are
Commissioners and SES level officers who are authorised to perform
this function. Authorising officers in the ACC are the organisation
s CEO and SES officers authorised for this purpose by the CEO
(clause 6).

There are three situations in which
an emergency authorisation can be obtained from an authorising
officer.

An application can be made to an authorising officer for an
emergency authorisation if a law enforcement officer reasonably
suspects that:

there is an imminent risk of serious violence to a person or
substantial damage to property; and

the use of a surveillance device is 'immediately necessary' to
deal with the risk; and

the circumstances are so serious and urgent that a surveillance
device should be used; and

it is not practicable to apply for a warrant [subclause
28(1)].

The application can be made orally or in writing and can be
granted if the authorising officer is satisfied that there are
reasonable grounds for the suspicion founding the application
[subclauses 28(3)-(4)].

A law enforcement officer can also apply for an emergency
authorisation if:

a recovery order is in force; and

the law enforcement officer reasonably suspects that the
circumstances are so urgent that the immediate use of a
surveillance device is warranted, and that it is not
practicable to apply for a warrant [subclause
29(1)].

Once again, the application may be made orally or in writing and
may be granted if the authorising officer is satisfied that a
recovery order is in force and there are reasonable grounds for the
suspicion on which the application is based [subclauses
29(2)-(3)].

An application for an emergency authorisation can be made if an
investigation is being conducted into certain narcotics or
terrorism offences and the law enforcement officer
reasonably suspects that the use of a surveillance device is
immediately necessary to prevent the loss of relevant evidence
and the circumstances are so serious and urgent that the use
of a surveillance device is warranted and it is not
practicable to apply for a warrant [subclause
30(1)].

The application can be made orally
or in writing and can be granted if the authorising officer is
satisfied that an investigation is being conducted into a narcotics
or terrorism offence and that there are reasonable grounds for the
suspicion on which the application is based [subclauses
30(3) & (4)].

Within 2 business days of an emergency authorisation being
issued the authorizing officer must ask an eligible Judge or
nominated AAT member to approve the authorisation
[subclause 33(1)]. A 'business day' means a day
other than a Saturday, Sunday or public holiday in the relevant
State or Territory (clause 6). In other words,
depending on the time of year the authorisation could be in use for
several days before approval need be sought.

Clause 34 sets out the matters which the
eligible Judge or nominated AAT member must consider when an
approval application is before him or her. In the context of the
intrusive nature of surveillance, the matters include the extent to
which alternative methods could have been used, how much they would
have helped or prejudiced the particular law enforcement objective
and whether or not it was practicable to apply for a warrant.
Similar factors need to be considered when the application relates
to a child recovery order.

Clause 35 enables an eligible Judge or AAT
member to approve an emergency authorisation if satisfied of
certain matters. For instance, in the case of an emergency
authorisation given in relation to serious risks to persons or
property, the authorisation may be approved if there were
reasonable grounds to suspect that there was a serious risk
and that using a surveillance device may have helped to
reduce that risk and that it was not practicable to apply
for a warrant.

If an approval is given, the eligible Judge or AAT member may
issue a warrant for the continued use of the device or, if there is
no further need for it, order that its use cease. If approval is
not given, an order may be made for the surveillance to cease.
Orders can also be made that information obtained from the use of
the device be dealt with in a manner specified in the order, not
being a manner that involves the destruction of that
information.

A law enforcement officer can use an optical surveillance device
without a warrant in the course of agency functions if the use of
the device does not involve entry onto premises without permission
(clause 37). As stated earlier, optical
surveillance devices include observational devices like binoculars
and recording devices like cameras and video recorders.

A law enforcement officer can use a surveillance device without
a warrant for listening or recording purposes, if the officer is
acting in the course of agency functions and is
participating in the conversation. An example would be where the
officer is acting undercover (clause 38).

Clause 39 enables a law enforcement officer to
use a tracking device without a warrant but with the written
permission of an appropriate authorising officer when investigating
a relevant offence or in order to locate and recover a child who is
the subject of a recovery order. The device may also be retrieved
without a warrant [subclause 39(6)] if written
authorisation is obtained.

However, authorisation of the use, installation or retrieval of
the tracking device cannot be given if it would involve entry onto
premises without permission or interference with the interior of a
vehicle without permission [subclause 39(7)].

In order to obtain written authorisation the applicant law
enforcement officer must apply orally or in writing, addressing the
matters that would need to be addressed if the application were,
instead, an application for a tracking device warrant
[subclause 39(8)].

As stated above, a tracking device authorisation will not
authorise all the things that could be done if a surveillance
device warrant were to be obtained. For instance, it cannot be
given if its use or retrieval would involve entry onto premises
without permission or interference with the interior of a vehicle
without permission. However, it will authorise action taken to
conceal the device [subclause 39(9)]. It will also
authorise breaking things open to retrieve the device and the
temporary removal of an object or vehicle in which the device is
installed so that the device can be retrieved [see
subclause 39(10)].

As soon as practicable after giving the tracking device
authorisation, the authorising officer must make a written record
which includes certain information such as the name of the
applicant, the time and date of the authorisation, the offence
being investigated (or details about the child recovery order,
where relevant), where the tracking device is being used and any
conditions governing the use of the tracking device (clause
40). How accurately this information will be recorded when
authorisation requests can be made orally is a practical issue
affecting accountability that Parliament may wish to consider.

Proposed Part 5 deals with the extraterritorial
operation of warrants.

Subclause 42(1) provides that if, before a
warrant is issued or approval is given for an emergency
authorisation, the applicant law enforcement officer becomes aware
that surveillance will be needed in a foreign country or on foreign
vessels or aircraft outside the limits of the Australian
territorial sea, the eligible Judge or AAT member must not issue
the warrant unless satisfied that the surveillance has been agreed
to by the foreign country.

Similarly, if a warrant has already been issued and it becomes
apparent that surveillance in a foreign country or of foreign
vessels or aircraft will be needed, the warrant will only permit
such surveillance if the foreign country agrees [subclause
42(3)].

However, there are exceptions to these general rules. So,
if:

a foreign vessel is in waters within the outer limits of the
contiguous zone(17) and suspected customs, fiscal,
immigration or sanitary law offences are involved, or

a foreign vessel is in waters within the outer limits of the
contiguous zone and certain fishing offences are suspected

it will not be necessary to obtain the agreement of the foreign
country for the surveillance while the vessel is in those
waters.

Subclause 42(8) provides for that, for the
avoidance of doubt it is not necessary to obtain the agreement of a
foreign country if the foreign aircraft or vessel is in Australia
or within the outer limits of Australia s territorial sea.

Evidence obtained from surveillance in a foreign country is
inadmissible as evidence unless the court is satisfied that the
surveillance was agreed to by the foreign country (clause
43).

Proposed Part 6 contains rules governing the
use of information obtained from the use of surveillance devices.
This information is called protected information.

Protected information is defined in clause 44.
Among other things, it means:

any information obtained from the use of a surveillance device
under a warrant, emergency authorisation or tracking device
authorisation

any information relating to an application for a warrant or the
existence of a warrant, emergency authorisation or tracking device
authorisation

any information likely to identify a person or premises
specified in a warrant, emergency authorisation or tracking device
authorisation, or

The term, protected information also includes any other
information obtained by a law enforcement officer without the
authority of a warrant, tracking device authorisation or an
emergency authorisation that was later approved but only if
the information is obtained in contravention of the requirement for
such a warrant, tracking device authorisation or emergency
authorisation [proposed paragraph 44(1)(d)].

Obtaining information under proposed section 37
(use of optical surveillance devices without warrant) or under
proposed section 38 (use of surveillance devices
for certain listening or recording purposes) does not require any
warrant or emergency authorisation and so is not protected
information for the purposes of the legislation. As a result, the
prohibitions and protections in proposed Part 6 do
not apply to this information.

Subclauses 45(1) & (2) create offences:

it is an offence to intentionally use, record, communicate or
publish information that is protected information if the use etc is
not permitted and the person is reckless about that circumstance.
The maximum penalty is 2 years imprisonment.

there is an aggravated offence where the use etc recklessly
endangers health or safety or prejudices the conduct of an
investigation into a relevant offence. The maximum penalty is 10
years imprisonment.

Subclauses 45(4) & (5) contain exceptions
to the general prohibitions on the use etc of protected
information. For instance, the general prohibitions do not apply to
protected information obtained under a warrant, emergency
authorisation or tracking device authorisation where the
information:

has been disclosed in open court proceedings lawfully

is used to prevent or reduce the risk of serious violence or
substantial property damage

is communicated to the heads of Australia s security and
intelligence agencies; or

is communicated to a foreign country in respect of criminal
proceedings [subclause 45(4)].

This protected information can also be used or admitted into
evidence if necessary:

to investigate a relevant offence (18)

to make a decision about the prosecution of a relevant
offence

in relevant proceedings (19)

to investigate complaints against public officers (ie
Commonwealth, State or Territory office holders and employees) or
to make decisions about the termination of their employment; or

in order to keep the records required by proposed
Division 2, for the purposes of Ombudsman inspections as
required by the Act, or for the purposes of an investigation under
the Privacy Act 1988.

It is important to note that protected information obtained as a
result of the unauthorised use of a surveillance device in
circumstances where a warrant or other authorisation should have
been obtained can be communicated:

if it has been disclosed in proceedings in open court
lawfully

in order to help prevent or reduce the risk or serious violence
to a person or substantial damage to property

to Australia s intelligence agencies

in order to investigate complaints against public officers and
make decisions about the termination of their employment; or

for the purposes of an inspection by the Ombudsman or an
investigation under the Privacy Act [see subclause
45(6)].

Clause 46 imposes safe keeping requirements for
protected information on law enforcement agencies and also requires
records of protected information to be destroyed if they are not
likely to be required.

Clause 47 enables a person giving evidence to
object to the disclosure of information that could reveal details
of surveillance device technology or methods of use etc. In
deciding whether to make a non-disclosure order a court must take
account of whether disclosure is:

necessary for the fair trial of the defendant; or

in the public interest.

A court can also make a non-publication order.

Protected information held by a royal commission, court or
tribunal cannot be accessed except by order of that body
(clause 48).

As soon as practicable after a warrant or authorisation has
expired, each law enforcement agency that has obtained a warrant or
authorisation must report to the Minister and provide a copy of the
warrant or the authorisation. The report must include specified
information for instance:

whether the warrant or authorisation was executed; and

if so, who executed the warrant, the kind of device used,
the period of use, the name of anyone whose activities were
monitored or recorded, details of where the device was installed,
how the use of the device benefited the investigation of a relevant
offence or assisted in the location and recovery of a child, and
how the conditions of the warrant were complied with. Any
extensions or variations of the warrant must also be stated
(clause 49).

In the case of a retrieval warrant, the report must provide
details of any premises entered in order to retrieve the warrant,
whether or not the device was retrieved and information about
compliance with the conditions of the warrant.

Law enforcement agencies must also report to the Minister within
3 months of the end of each financial year. The Minister must table
the report in Parliament within 15 sitting days of receiving it
(clause 50).

The report must satisfy statutory reporting requirements such
as:

the number of warrant and authorisation applications, the
numbers issued and refused (and the reasons for refusals)

the number of extension applications made, granted and refused
(and the reasons for granting or refusing)

the number of remote applications

the number of arrests made on the basis (wholly or partly) of
information obtained by use of surveillance devices or tracking
devices issued under warrant or authorisation; and

the number of prosecutions for relevant offences commenced where
information obtained from the authorised use of surveillance or
tracking devices was given in evidence and the number of
prosecutions that resulted in a guilty verdict.

Clauses 51 and 52 set out
requirements for record-keeping which must be met by law
enforcement agencies. For instance, law enforcement agencies must
keep each warrant issued and each application made for a warrant,
emergency authorisation and tracking device authorisation, records
of each emergency authorisation and tracking device authorisation,
and a copy of each section 49 report to the Minister.

Each law enforcement agency must also keep
records containing the information required in the annual report to
the Minister (see above).

Each law enforcement agency must keep a register of warrants and
authorisations that contains information such as the date the
instrument was issued or refused, the name of the authorising
judicial officer or other person, the name of the executing
officer, the relevant offence or the name of the relevant child (in
relation to a recovery order) the period for which the instrument
was in force and any variations or extensions of the warrant
(clause 53).

The Bill enables the Commonwealth Ombudsman (or his/her
inspecting officers) to inspect the records of law enforcement
agencies in order to determine whether statutory requirements have
been met by the agency and its officers (clause
55). For these purposes, the Ombudsman must be given full
and free access to relevant agency records, may copy those records
and require staff members to provide relevant information. These
inspections can be carried out during the currency of a warrant or
authorisation but the Ombudsman can refrain from doing so at such
time if he or she so chooses [subclause
55(4)].

It is an offence, punishable by a custodial sentence of up to
six months, to refuse to give information or answer questions if
the Ombudsman requires a person to do so [subclause
56(6)]. Clause 57 makes it clear that
self-incrimination does not excuse a person from complying with
such a requirement. However, the person is provided with a use and
derivative use immunity.(20)

Clause 58 enables the Ombudsman to exchange
information with State or Territory inspecting authorities . These
are agencies that perform similar functions under State or
Territory law.

At six-monthly intervals the Ombudsman must report to the
Minister on the results of each inspection.(21) The
Minister must table the report in Parliament within 15 sitting days
(clause 61).

Clause 62 enables law enforcement agencies to
provide certificates that are prima facie evidence of what they
state for the purposes of court proceedings. For example, an
evidentiary certificate can state as facts anything done by a law
enforcement officer when acting under a warrant, under an approved
emergency authorisation or under a tracking device
authorisation.

Such a certificate cannot be admitted into evidence unless the
defendant has been given a copy of the certificate at least 14 days
before the prosecution seeks to have it admitted into evidence.

If a certificate is admitted into evidence, the defendant can
require the person who gave the certificate to appear as a witness
for the prosecution and be cross-examined in court.

Schedule 1 makes a number of transitional and
savings amendments. For instance, it repeals those provisions in
the AFP Act that currently deal with listening devices and makes
transitional and saving arrangements for listening devices warrants
in force at the time of the repeal.

Both the JWG report and the Attorney-General s Second Reading
Speech note that it is important to protect society against crime
and that surveillance technology can be an important weapon in the
law enforcement arsenal. In view of the intrusive nature of
surveillance, they also acknowledge the need to protect privacy
interests. Privacy interests have been identified as being:

the interest in controlling entry to personal territory

the interest in freedom from interference with one s person and
personal space

the interest in controlling one s personal information;
and

the interest in freedom from surveillance and from interception
of one s communications.(22)

One reason for the Bill to protect privacy interests and
regulate the use of surveillance is the limited protection given by
the common law when a person is subjected to
surveillance.(23) In this context, it may be important
to note that surveillance devices can intrude into the lives of
third parties who have nothing to do with police investigations.
Another reason for taking privacy issues into account is the
obligations Australia has as a party to the International Covenant
on Civil and Political Rights (ICCPR). Article 17 of the ICCPR
provides:

(1) No one shall be subjected to arbitrary or
unlawful interference with his privacy, family, home or
correspondence, nor to unlawful attacks on his honour and
reputation.

(2) Everyone has the right to the protection of
the law against such interference or attacks.

Various provisions in the Bill aim to address privacy issues.
For instance, warrants are issued by Judges and AAT members,
restrictions are placed on the uses to which protected information
can be put, there are record-keeping and reporting requirements,
and inspection provisions. On the other hand, the Bill contains no
general prohibition on the use of surveillance devices subject to
exceptions. It enables surveillance devices to be used without
warrant or authorisation in certain circumstances. Protected
information obtained without the requisite authorisation can be
used in a range of circumstances not restricted to the
investigation of complaints. And information obtained lawfully
without a warrant is not protected information for the purposes of
the legislation. These and other issues are considered in more
detail below. Parliament may wish to consider whether the proposed
statutory regime constitutes a reasonable and proportionate
interference with privacy.(24)

The ICCPR also provides, in article 14, that an accused has a
right to a fair trial. One of the incidents of a fair trial is the
accused s right to silence.(25) Article 14(3)(g) of the
ICCPR says that an accused person has the right [n]ot to be
compelled to testify against himself or to confess guilt .

Parliament may want to consider whether the provisions in the
Bill, including the uses that can be made of information obtained
without the need for a warrant, are an acceptable or an unwarranted
interference with an accused s right to silence.

The application of the Bill in a law enforcement context is
determined by the scope of the definition of relevant offence in
clause 6.

The issue of offence thresholds was the subject of differing
submissions to the JWG Discussion Paper. Privacy bodies such as
Privacy NSW supported a three year threshold(26) as
serving an important symbolic privacy function in recognising that
surveillance, by its very nature, is privacy invasive and that it
requires a strong public interest to overcome objections to its
use. (27) Legal bodies, such as the Law Council of
Australia and the International Commission of Jurists, recommended
a higher threshold of either 7 years, in line with the general
scheme of the TI Act, or 10 years. The Victoria Police proposed an
any offence threshold.

The JWG concluded that its original proposal (for a three year
threshold) should be supplemented by a provision enabling
regulations to prescribe offences that fall below the three year
threshold. This is the position adopted in the Bill.

The JWG Report supported the use of emergency authorisations (ie
no prior warrant) in limited circumstances in summary, where a
serious risk of personal violence or substantial property damage
existed.(28) It remarked:

The JWG believes that there are limited
circumstances when it may be impracticable for law enforcement
agencies to apply for a warrant, even by telephone. These are the
circumstances contemplated by clause 21 [clause 28 of the Bill]
(where the scale of potential harm or damage is serious and the
time pressures are urgent) The JWG considered, but rejected,
singling out serious drug offences as a separate category for which
emergency authorisations may be issued.(29)

In a criminal law context, the Bill adopts the JWG
recommendation but also adds to it by enabling emergency
authorisations to also be granted where there is a risk of loss of
evidence in relation to certain offences (such as prohibited
imports and narcotics offences, and terrorism offences).

Both the model Bill and the Bill before the Parliament deal with
what happens to information that has been collected under an
emergency authorisation. The model Bill contained a clause giving a
Judge considering an emergency authorisation approval application
the power to order that any information obtained from or relating
to the exercise of powers under the emergency authorisation or any
record of that information be dealt with in the way specified in
the order. (30) This would have included destroying the
information. However, the Bill provides that the Judge or AAT
member may order that information obtained from the use of an
emergency authorisation be dealt with in a manner specified in the
order, not being a manner that involves the destruction of that
information. (31)

Parliament may wish to consider whether a Judge or AAT member
should have the power to order the destruction of records. As the
JWG Discussion Paper points out, this would provide:

an additional safeguard if the law enforcement
agency obtains material that falls outside the
approval.(32)

It would also ensure that material would be destroyed where an
approval was not obtained thus guaranteeing that it could not be
used under any of the protected information exceptions found in
clause 45.

The Bill enables optical surveillance devices to be used without
a warrant if their use does not involve entry onto premises or into
vehicles without permission. The Second Reading Speech
comments:

Less intrusive surveillance may be carried out
without a warrant. There is nothing unusual about this. Police,
throughout our history and across jurisdictions, have engaged in
certain types of surveillance without a warrant. For example, this
might include the use of binoculars to watch a group of terrorists
scout a location for a possible attack. This is routine police work
and must not be subject to unnecessary restrictions which would
destroy police effectiveness.

However, the exception relating to optical surveillance devices
is not confined to observational devices like binoculars or
telescopes. It includes recording devices and appears to encompass
recording devices like video cameras that can capture sound as well
as images. In a report published in 2001, the NSW Law Reform
Commission remarked:

visual surveillance can be extremely invasive and
can identify individuals more clearly than audio devices, leading
to the comment in R vMcNamara that the use of a
video camera is in some respects more intrusive than a sound
transmitter. (33)

The JWG considered but rejected suggestions that the power to
approve the use of a tracking device should be exercisable by a
senior law enforcement officer rather than a judicial
officer.(34) It noted:

Given the intrusion on privacy involved in
surveillance, it is necessary for an impartial authority to
evaluate the application and consider whether surveillance is
appropriate.(35)

The Bill takes a different approach. It provides that tracking
devices can used if approved by a senior law enforcement officer,
although approval cannot be given if the installation or retrieval
of the device involves entry onto premises without permission or
interference with the interior of a vehicle without permission.

Parliament may want to consider whether privacy interests
suggest that tracking devices should be treated in the same way as
other surveillance devices.

The JWG also concluded that a composite device (one with
tracking and other surveillance functions) should require judicial
authorisation. While the Bill contemplates that surveillance
devices may be composite devices, it does not appear to require
composite tracking devices to be authorised by way of warrant.

The Bill provides that if the chief officer of a law enforcement
agency considers that a surveillance or tracking device is no
longer needed, he or she must ensure that the use of the device is
discontinued. The JWG proposed the chief officer should act as soon
as practicable .

The JWG also proposed that when the chief officer is notified
that a warrant has been revoked he or she must take action to
ensure that use of the surveillance device authorised by the
warrant is discontinued immediately . The Bill provides that the
action should be taken as soon as practicable . Parliament may wish
to consider whether, because of the privacy issues involved in the
use of surveillance devices, the words proposed by the JWG should
be adopted. This may also help to ensure that devices are not used
for purposes other than the purposes for which they were
granted.

Clause 45 contains offences relating to the use
etc of protected information and exceptions to the general
prohibitions on its use.

If protected information is collected without warrant or
authorisation or where it is collected as a result of an emergency
authorisation that is not subsequently approved then it cannot be
used for criminal investigation purposes, for the purposes of
making decisions about prosecuting a relevant offence or in
evidence. However, it may be used etc in a range of other
circumstances as the Explanatory Memorandum explains:

Protected information that falls within paragraph
44(d) may still be used, recorded, communicated or published under
the exceptions contained in 45(4)(a),(b),(c),(d) and (e) because of
the overriding public or national security interest in each case.
Similarly, such information may also be communicated under the
exceptions contained in 45(5)(d),(e),(f),(g) and (h) because these
exceptions allow for the investigation into any improprieties which
may attach to the surveillance itself or any subsequent use of
protected information which have been gathered through that
surveillance.(36)

What this means is that there are two broad types of use that
can be made of protected information obtained without
authorisation. One is unexceptional. Use is permitted for the
purposes of investigating complaints about the use of surveillance
devices or the information obtained from them [see
paragraphs 45(5)(d)-(h)].

The second category of exceptions [contained in
paragraphs 45(4)(a)-(d)] mean that information can
be used and communicated if it has been disclosed in open court
lawfully , or it is believed that the use or communication is
necessary to prevent or reduce the risk of serious violence to a
person or substantial damage to property or it is communicated to
the head of one of Australia s intelligence agencies(37)
where it relates or appears to relate to any matter within the
functions of that agency. It may also be used and communicated by
officers of those agencies in the performance of their official
functions.

The paragraph enabling protected information to be communicated
to the heads of Australia s intelligence agencies is widely cast.
It need only relate or appear to relate to any matter within an
agency s functions. It is not confined to the communication of
information about activities that are prejudicial to national
security. The JWG took a different approach to that employed in the
Bill. Its model bill provided that protected information could not
be communicated to ASIO if it had been collected under an emergency
authorisation that was not subsequently approved.

Finally, questions might be asked about paragraph (c) of the
definition of protected information . This provision has clearly
been formulated with privacy issues in mind. For example, protected
information includes information likely to identify a person,
object or premises specified in a warrant, emergency authorisation
or tracking device authorisation. However, the definition also
encompasses any information relating to the existence of a warrant,
emergency authorisation or tracking device
authorisation.(38) The publication of such
information(39) is an offence carrying a penalty of up
to two years imprisonment. A person need not intend any adverse
consequences to privacy or law enforcement activities. Nor is the
offence related only to the currency of the warrant or a limited
period thereafter. Parliament may wish to consider whether such a
provision places undue restrictions on public debate about the use
of surveillance devices by law enforcement officials.

As discussed in the Main Provisions section of this Digest,
certain information obtained from the use of surveillance devices
does not fall within the definition of protected information at
all. This means that it is not subject to the prohibitions and
restrictions placed on the use of protected information that are
found in proposed Part 6. For example, use of an
optical surveillance device by a law enforcement officer in the
course of their duty does not require a warrant or other
authorisation. Nor does use of a surveillance device for listening
or recording in certain circumstances. As a result, information
obtained from such surveillance devices is not protected
information because it is not information obtained in contravention
of a requirement for a warrant or authorisation. Thus, it will not
be an offence to use, communicate or publish such information. And
it can be admitted into evidence in any proceedings, communicated
to intelligence agencies for any purpose, etc.

Parliament may want to consider whether or not it is appropriate
for the use of such information to be outside the prohibitions and
protections contained in proposed Part 6.

One of the issues raised in submissions to the JWC was whether
there should be additional front end accountability for
surveillance device warrants. One of the front end accountability
provisions in Queensland law is the Public Interest Monitor (PIM).
The PIM:

monitors compliance by police officers with the
legislation when they apply for surveillance device warrants,
appears at hearings for surveillance device warrants to test the
validity of the application, gathers statistical information about
the use and effectiveness of warrants, reports to the Commissioner
on non-compliance by police officers, and reports annually to the
Minister.(40)

Some submissions to the JWG supported the use of an independent
officer to attend hearings and review performance. Others did not.
The JWG came to the view that judicial scrutiny of warrant
applications provided sufficient front end scrutiny.

If the Bill is passed, it appears that there will be a more
complex scheme than already exists governing access to people s
computers and their emails.

The JWG considered suggestions that the definition of data
surveillance should be expanded to protect stored email messages
and internet browsing logs .(41) It rejected such
suggestions on the basis that this information should arguably be
captured by the ordinary search warrant process and that reform in
[the area of unread emails], whether through the TI Act or other
regulation is beyond the scope of this project. (42)

The Telecommunications (Interception) Amendment Bill 2004, which
was recently before the Parliament, was designed to reform the law
relating to stored or delayed access communications like emails,
text messages and voicemail. The Bill was referred to the Senate
Legal and Constitutional Legislation Committee, which heard
evidence from the Australian Federal Police and the
Attorney-General s Department. This evidence revealed differences
of opinion about the operation and interaction of the TI warrant
regime and section 3L of the Crimes Act (the regime that deals with
search warrants and computers).

The AFP had legal advice from the Director of Public
Prosecutions that section 3L permits it to remotely access both
read and unread emails from a computer when it is acting under an
ordinary search warrant. The Attorney-General s Department
disagreed and referred to advice from the Solicitor-General that a
TI warrant would be required for such activity.(43)

A question that could arise is whether the Surveillance Devices
Bill may add to this confusion. The definition of surveillance
device in the Bill includes data surveillance devices . These are
devices or programs capable of being used to record or monitor the
input of information into or the output of information from a
computer [not including optical surveillance devices]. The JWG
report points to the usefulness of data surveillance devices from a
law enforcement perspective:

with the increasing adoption of encryption
technology it is desirable for law enforcement to be able to
monitor computer activity prior to material becoming encrypted or
after it has been decrypted. the ability to monitor the input of
information as it is typed into the computer allows the police to
record the information before it is encrypted. The surveillance of
computer output, such as images on a monitor, can also be used to
overcome difficulties with encryption.(44)

Questions might arise about what sort of warrant is needed in
relation to email for example, depending on whether the email is
being typed into a computer or has been read or not read by its
intended recipient. And while the Bill provides that certain types
of surveillance cannot be carried out under its auspices if a TI
warrant would be required , it may not be clear as the dispute
between the AFP and the Attorney-General s Department indicates
whether a TI warrant is required in a particular case. Nor is it
clear that in any case where a warrant is needed it should be the
most privacy protective warrant that is required.

If the Bill is passed it will add to the number of different
warrants that are available under different statutes covering
similar situations. There will also be new categories of
information and associated rules for using and communicating it
(for instance, three categories of information under the
Bill(45) in addition to information covered by Part VII
of the TI Act(46)). There are also different
accountability regimes under the Bill and the TI Act. Further,
entirely different rules apply to search warrants under section 3L
of the Crimes Act.

Parliament may wish to consider whether this combination
fragmentation and complexity will create unacceptable difficulties
for both law enforcement agencies and people who are placed under
surveillance, whose telecommunications are intercepted and whose
computers may be accessed.

Standing Committee of Attorneys-General and Australasian Police
Ministers Council Joint Working Group on National Investigation
Powers (JWG), Cross-Border Investigative Powers for Law
Enforcement, Discussion Paper, February 2003, p. i.

The constitutional underpinnings of Commonwealth listening or
surveillance device laws are the Commonwealth s power to make laws
about offences and criminal investigation that are incidental to
particular heads of power like the power over trade and commerce
with other countries or powers over taxation or external
affairs.

In other words, in relation to the investigation of State
offences with a federal aspect and State offences without a federal
aspect, State and Territory police must act under State or
Territory laws rather than under the Commonwealth s surveillance
devices legislation.

Enhancement equipment means equipment capable of enhancing a
signal, image or other information obtained by the use of the
surveillance device (clause 6).

p. 15.

This term is defined in the Seas and Submerged Lands Act
1973.

A term defined in clause 6.

A term defined in clause 6. It includes the prosecution of a
relevant offence , proceedings for the confiscation or forfeiture
of property, proceedings for the protection of a child or
intellectually impaired person, proceedings concerning the validity
of a warrant or authorisation, disciplinary proceedings against
public officers, coronial inquests, International Criminal Court
proceedings, and bail proceedings.

This is the most comprehensive kind of immunity available to a
witness. First, it prevents direct use of a witness s testimony
against him or her. Second, it prevents anything obtained or
derived indirectly from the witness s testimony being used against
him or her.

The Bill refers to inspections carried out under clause 54. This
appears to be a drafting error. Clause 55 is the relevant
provision.

The model Bill proposed by JWG would also have allowed for
emergency authorisation to protect evidence when an investigation
became a cross-border investigation but where surveillance had
already been occurring under a State or Territory law, generally
based on a judicial warrant.

A prohibition on the publication of designated warrant
information is found in the TI Act (section 63). Designated warrant
information includes information about the existence or
non-existence of a TI warrant (section 6EA).

Jennifer Norberry
27 May 2004
Bills Digest Service
Information and Research Services

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